Master Says Communications with Paralegal Are Privileged (in this case, at least)

In what is apparently the first case to consider the issue, Master R. Dash has held that communications passing between a paralegal and his client were privileged from production in a civil action. The case is an interesting one, partly because of the finding that the communications in this case were protected by privilege but also because of the master’s careful analysis of the principles underlying privilege generally and how paralegals fit into that body of law.

The plaintiff in Chancy v. Dharmadi is suing for damages to compensate her for personal injuries suffered in a motor vehicle accident. The defendant had been charged with careless driving under the Highway Traffic Act and had retained POINTTS to represent her in relation to that charge. She ended up pleading guilty to a lesser offence.

(POINTTS is an acronym for “Provincial Offences Information and Traffic Ticket Service”, a company which markets itself as “The Traffic Ticket Specialists”.)

In this civil action, the plaintiff sought production of “the complete POINTTS file”. Counsel for the defendant refused, claiming that the file was privileged. The issue on this motion was whether a claim for privilege could validly be asserted by a paralegal.

Master Dash had already ruled, at a previous hearing, that (a) the question was relevant and (b) that litigation privilege did not apply (since the charge had been disposed of, thus ending the privilege).

The Master began by noting that privileged relationships can be of two types: “class privilege” which protects certain well-defined types of relationships, such as solicitor and client, and other relationships, not inherently protected by privilege but which may, on a case by case basis, give rise to privilege:

If a communication is made between parties that are covered by a class privilege, the communication will be excluded without satisfying the Wigmore criteria and it is up to the party seeking production to prove an exception. If it is not covered by a class privilege, the communication will not be excluded unless the party asserting privilege satisfies the Wigmore criteria on a case-by-case basis.

(“The Wigmore criteria” are four factors propounded by an American legal scholar as a test for determining whether privilege should be found to exist in a particular case.)

The Master felt that many of the same rationales that underlie solicitor-client privilege could also apply to the relationship between a paralegal and his/her client. However, he identified a basic problem: what is a paralegal? This was key because, as the Master said, “it is critical for recognition of a class that the participants in that class are specific identifiable actors”.

(The Access to Justice Act, 2002, will regulate paralegals in Ontario but those legislative reforms have not yet taken effect. It is expected that the first licences to paralegals will be issued next year.)

The Master concluded that “there is no principled reason why a class privilege should not be extended to paralegal-client communications, however it must be restricted to communications with an identifiable group, namely paralegals licensed by the Law Society. Since the paralegal with whom the defendant communicated was not a licensed paralegal, no class privilege can be said to apply.” He declined to find that the defendant’s communications with the POINTTS paralegal gave rise to a class privilege.

However, applying the Wigmore criteria, he was satisfied that a finding of privilege should be made in this particular case. The four factors are as follows:

  1. The communications must originate in a confidence that they will not be disclosed.
  2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
  3. The relation must be one which in the opinion of the community ought to be sedulously fostered.
  4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation

Master Dash’s analysis of each of these factors has not been summarized here, but he found that all four requirements had been met on the facts of this case. Accordingly, even though the POINTTS file was not protected by a class privilege, it did qualify for privilege on the “case by case” approach of the Wigmore criteria.

The Master left the door (wide) open for the question of class privilege for paralegals to be revisited once the new system has gotten underway:

Once licensing of paralegals is in effect, the court may in an appropriate case revisit the idea of granting a class privilege to communications between a client and a paralegal licensed by the Law Society to provide legal services (paralegal-client privilege), rather than requiring the court to engage in a case-by-case analysis respecting each such communication.

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